All of our deliveries and services to businesses, companies, and legal entities subject to public law or special assets governed by public law (hereinafter referred to as “Purchaser”) shall be governed exclusively by the following terms and conditions:
1. General Provisions
1.1. The following Terms and Conditions exclusively apply to all our quotations, supplies and other performances as well as to any special conditions notified to the Purchaser. Any subsidiary agreements are only binding if they have been made in writing.
1.2. Purchaser’s differing general terms and conditions do not apply unless expressly confirmed by us in writing. Neither the failure to object to Purchaser’s general terms and conditions nor the supply of goods or provision of services shall be construed as consent to other general terms and conditions than these Terms and Conditions for Sale and Delivery.
2.1. Our Quotations / Offers are always non-binding and subject to confirmation. An order is deemed legally valid only after our written confirmation.
2.2. We reserve all proprietary rights and copyrights on illustrations, drawings, and other material, which we submit to the Purchaser. These documents shall not be used for any other purposes than those specified by us and shall not be made accessible to third parties without our prior written consent. Moulds produced on our behalf remain our property, even if they are proportionately debited to the Purchaser.
2.3. We reserve the right of approximate delivery of up to + / - 10 % (ten percent) of the quantities ordered in accordance with the common practice in its field.
3.1. Unless otherwise agreed, prices are quoted in EURO and apply to delivery ex works (“EXW” according to Incoterms 2010), excluding packaging, freight, postage and insurance. Prices are supplemented by value added tax at the appropriate statutory rate.
3.2. We may charge a minimum invoice value or an additional processing fee for an order if quantities do not reach the minimum quantities and/ or minimum order value as contained in the relevant price list.
4.1. Delivery periods or dates are, even when a delivery date has been agreed with the Purchaser, always approximate unless the delivery date is expressly agreed as fixed in writing. Adherence to delivery period or date assumes that we have received all documentation to be supplied by the Purchaser, in particular necessary approvals and clearances, plans and drawings, in good time and that the Purchaser has met any agreed payment obligation as well as any other obligations on the part of the Purchaser.
4.2. The delivery period or date has been adhered to if dispatch readiness has been notified to the Purchaser or at latest if the delivery item has left our works.
4.3. If we fail to complete the contract in good time and if the Purchaser can show that he has suffered damage as a result, the Purchaser is entitled to demand lump sum compensation for the delay. This amounts to 0,5 % for each full week of delay, with a maximum total amount of 5 % (five percent) of the value of that part of the total delivery which cannot be used in time or in accordance with the contract as a result of the delay. All other rights for delay shall be governed exclusively by Clause 10 hereof. The Purchaser may rescind the contract in accordance with the applicable statutory provisions only if we are responsible for the delay of delivery.
4.4. Force majeure, labor unrest, riots, government actions, failure of our supplier to make delivery and other, unforeseeable, unavoidable, material events release us from our contractual duties during the time the interruption persists. The delivery period shall be extended by a period of time equal to the duration of such force majeure event. The same applies even, if these events occur at a time during which we are in default. We shall provide the Purchaser immediately with the necessary information to the extent it can be reasonably expected.
4.5. Partial deliveries are permissible if reasonable for the Purchaser.
5. Dispatch and passing of risk
5.1. Dispatch shall be ex works (“EXW” Incoterms 2010) at the risk of the Purchaser unless otherwise agreed in the order confirmation. This provision shall also apply, if we use our own means of transport for the shipment. We shall take out transport damage insurance at Purchaser’s cost, if the parties specifically agree upon such an insurance policy. If there is a requirement of acceptance this determines the passing of risk.
5.2. The method of packaging and the packaging material will be determined at our sole discretion. Palettes, containers, and other reusable packaging remain our property and must be returned without undue delay and at no charge to us. We will invoice disposable packaging at cost and will not take back such packaging.
5.3. If dispatch or acceptance is delayed or fails to take place as the result of circumstances which cannot be attributed to us, risk passes to the Purchaser from the day of notification of dispatch or acceptance readiness.
6. Acceptance Tests
6.1. Agreed Acceptance Tests shall, unless otherwise agreed, be carried out at the place of manufacture during normal working hours.
6.2. If the contract does not specify the technical requirements, the tests shall be carried out in accordance with general practice in the appropriate branch of industry concerned in the country of manufacture.
6.3. The Purchaser will be informed in due time about the date of the acceptance test. If the Purchaser is not present and also not represented at the acceptance test, we will send him the test reports, whose correctness the Purchaser may no longer contest.
6.4. If the test report shows the product not to be in accordance with the contract, we shall within reasonable time remedy any deficiencies in order to ensure that the Product complies with the contract. Purchaser can only demand a rerun of the acceptance tests if the deficiency was significant.
7. Payment Terms
7.1. Unless otherwise agreed payment must be made in cash or to our bank account either within 10 (ten) days after receipt of the invoice subject to deduction of a 2 % (two percent) discount or within 30 (thirty) days without any deduction. Invoices shall be deemed to have been received within 2 (two) days of dispatch, unless the Purchaser proves otherwise.
7.2. If payment had not been made within 30 (thirty) days after receipt of the invoice, the Purchaser is in payment default without any further requirement for reminder. In this event we are entitled to demand interest due at the current legal default interest rate. This does not apply if payment does not take place due to circumstances for which the Purchaser is not responsible.
7.3. The Purchaser may not retain any payment on the basis of any counter-claim or to set-off such payment in relation to any counter-claim unless such counter-claims or set-off are undisputed, or have been finally judicially determined
7.4. All of our demands become immediately due - regardless of e.g. any period of validity of a bill of exchange accepted - when the Purchaser is in arrears or in discharge of obligations. The same applies when it becomes evident that the payment demands are at risk due to the Purchaser inability to pay. In these events we are entitled to demand normal securities or payment in advance for any outstanding deliveries.
7.5. If more invoices or debits are outstanding, we shall – even if the Purchaser has a differing condition – be entitled to specify the order of amortisation.
8. Retention of Title
8.1. We retain title to all goods delivered until all claims resulting from the business relationship with the Purchaser have been satisfied (“Retained Goods”). In cases of current accounts the retained property shall be deemed to be collateral for the claim in relation to the balance of the account.
8.2. Purchaser is bound to store our Retained Goods separately and identify them accordingly. Purchaser shall take care of the Products; in particular, Purchaser shall insure the replacement value against fire, water damage, or theft at its expense. To the extent maintenance and inspection works tasks are required, Purchaser shall carry out these tasks in due time at its expense.
8.3. Treatment and processing of the Retained Goods are done for us as manufacturer within the meaning of Article 950 of the German Civil Code (BGB), without liabilities thereby arising for us. The treated and processed goods are deemed to be Retained Goods.
8.4. If the Retained Goods are combined by the Purchaser with other objects into a single object, it is deemed to have been agreed that the Purchaser transfers to us proportionate co-ownership within the meaning of Article 947 Clause 1 of the German Civil Code (BGB). Our co-ownership share shall be determined by the relationship of the invoice value of the Retained Goods to the invoice value of the new item. If the object of the Purchaser is considered to be the main object, it is deemed to have been agreed that the Purchaser transfers to us proportionate co-ownership to the extent that he owns the main object. The Purchaser retains the object for us in custody.
8.5. The Purchaser is entitled to resell the supplied goods in accordance with their intended use and the ordinary course of business. To the extent of our invoice final account the Purchaser hereby assigns all claims and accounts that result from the sale of the Retained Goods to third parties regardless whether the Retained Goods have been processed or not. We hereby accept such assignment.
8.6. The Purchaser is authorised to collect all claims and accounts receivable also subsequent to their assignment until such authorisation is withdrawn. We are entitled to withdraw the collection authorisation only for good reason, such as delayed payment, suspension of payment, significant deterioration in the assets of the Purchaser, opening of insolvency proceedings over the assets of the Purchaser. The Purchaser is obliged on our request to notify the third party Purchasers of the assignment and to provide us with the information required to asserts our rights as well as to hand over documents.
8.7. In the event of actions in breach of contract by the Purchaser, e.g. delayed payment, unauthorised disposal over the Retained Goods or a significant deterioration in the assets of the Purchaser or if the opening of insolvency proceedings over the assets of the Purchaser is requested by the Purchaser or third parties, we are entitled to prohibit the treatment and processing as well as the sale of the Retained Goods and to demand surrender of the Retained Goods.
8.8. We shall release the existing collateral to the extent that the value of such collateral exceeds the claims to be secured by more than 10 % (ten percent).
8.9. To the extent that mandatory legal provisions of the relevant foreign country do not contemplate retention of title within the meaning of this Clause 8, but do provide other forms of security in relation to claims arising from our invoices, we hereby reserve these rights. The Purchaser shall cooperate with us with respect to all measures we may reasonably request to be undertaken in order to protect our rights of title or other substitute rights in relation to the Retained Goods.
8.10. The Purchaser must notify us without undue delay if the Retained Goods are attached or if our rights are adversely affected by a third party in any other way. The Purchaser shall also immediately inform the distrainor of the retention of title.
9. Liability for Defects
9.1. The Purchaser has to examine the delivered products without undue delay and inform us about obvious defects or incorrect quantities in writing within ten (10) working days. About defects, which cannot be discovered in this period even after a careful inspection, we have to be informed immediately without delay after their discovery in writing. The notice shall contain a description of the defect. If the Purchaser fails to notify us in writing within the set time limits, he loses his right to have the defect remedied.
9.2. Until the clarification of the defect, processing of the delivered products shall not be continued. After further processing or installation, warranty claims expire unless the fault became recognisable only due to the further processing or installation.
9.3. After receipt of the notice under Clause 9.1. we shall have the opportunity to examine the defects on the spot. On our request the complained products shall be sent to us.
9.4. To the extent that at the time of passing of risk the supplied goods are unusable in whole or in part due to any defect, we shall at our reasonable discretion repair the good or delivery a defect-free product at no costs to the Purchaser. The Purchaser must grant to us a reasonable period of time and reasonable opportunity to permit such performance.
9.5. The Purchaser shall bear any additional costs which incur for repair, dismantling, installation and transport as a result of the product being located in a place other than the destination stated in the contract or – if no destination is stated – the place of delivery.
9.6. If repair or replacement delivery according to Clause 9.4. fails or we earnestly and finally refuse it, the Purchaser may withdraw from the contract within the framework of statutory regulations or demand a price reduction.
9.7. However, the Purchaser has no warranty claims for minor faults. Warranty claims do also not apply if these are caused by contravention of operating, maintenance and installation regulations, unsuitable or improper use or storage, incorrect or negligent handling or installation as well as normal wear and tear and any tampering with the delivery object by the Purchaser or third parties.
9.8. Claims for defects are subject to a limitation period of 12 (twelve) months beginning with passing of risk without prejudice of the provision of Article 479 Clause 1 of the German Civil Code (BGB) to the extent that latter is applicable..
10. General Liability
The additional statutory liability rights of the Purchaser apply subject to the following:
10.1. Claims for damages for whatever reason, in particular for indirect, consequential damage and lost profit, are excluded, unless caused by our wilful misconduct or gross negligence or by wilful misconduct or gross negligence by any party assisting in the performance of our obligations.
10.2. The aforementioned exclusion of liability shall not apply insofar as a claim arises from a breach of fundamental contractual duties, whose fulfilment mainly facilitates the proper performance of the contract and the observance, on which the contractual partner can reasonably expect to be able to rely on. To the extent that we negligently breach such a fundamental duty liability shall be limited to reimbursement of the ordinary foreseeable damage.
10.3. The exclusion of liability does also not apply if liability is based on a failure to comply with a guarantee granted for the quality of products or on a defect which was fraudulently concealed.
10.4. The exclusion of liability shall also not apply for culpable caused injury to life, body and health and in case of liability under mandatory product liability law.
10.5. As far as liability is excluded or limited, such exclusion or limitation shall also apply to any personal liability of our employees, representatives and persons assisting in the performance of obligations.
11. Third Parties’ Rights
If a third party claims an infringement of an industrial property right or copyright existing at the time of passing of risk at the place of performance because of products delivered by us, we are liable to the Purchaser as follows:
11.1. We are entitled at our discretion to obtain a licence for the product or modify it so that it no longer infringes the property right or copyright, or replace it by an equivalent substitute product not infringing the property right or copyright.
11.2. We shall only be liable pursuant to Clause 11 if the Purchaser informs us about any claim by third persons because of an infringement without delay in written form, if the Purchaser does not accept an infringement and all defences and comparison negotiations are reserved for us. If the Purchaser adjusts the use of the product, because of minimizing the damage or other important reasons, he is bound to let the third person know that this does not constitute an acknowledgement of an infringement of property right.
11.3. We are not liable, if the Purchaser is responsible for the infringement, e.g. if the Purchaser does not use the delivered products in accordance with the contract or if the delivered objects were manufactured in accordance with drawings, models or other equivalent descriptions or information supplied by the Purchaser and we cannot be expected to know that an infringement has occurred. Liability is also excluded if the infringement is caused, because the delivered product was changed or processed by the Purchaser or used with products not delivered by us.
11.4. In case of 11.3.the Purchaser exempts us from claims by third persons.
12.1. All claims of the Purchaser – of whatever legal reasons – are subject to a limitation of 12 (twelve) months unless applicable mandatory statutory law provides a longer limitation.
12.2. Place of performance for delivery and payment is Würzburg, Germany.
12.3. The place of competent jurisdiction shall be Würzburg. Notwithstanding the foregoing, we shall have the right to also commence legal proceedings at the principal place of business of the purchaser.
12.4. This Agreement and the legal relationship between Purchaser and us shall be governed exclusively by the law of the Federal Republic of Germany, excluding the conflict of law provisions and the UN-Convention on Contracts for the International Sale of Goods (CISG). The delivery clauses shall be interpreted and construed based on the INCOTERMS 2010.
12.5. If any provision of these Conditions of Sale and Delivery is or becomes ineffective, the remaining provisions shall remain valid. In such case, we and the Purchaser shall replace such provision with an effective provision which most closely reflects the commercial purpose of the ineffective provision.
12.6. Please note that we store and process personal data in the course of business transactions. All legal regulations concerning data privacy are observed.
Revision: May 2014